Visa denied at interview; lost paperwork and AP?

[Inharket 0]

Hi all. 

Just wondering if anyone has some perspective for me. 

 

Attended my interview and the first thing he asks me about is my police report. I explain the situation surrounding my charge. We go through the rest of it, and then at the end he pulls out the green paper he'd already had prepared and said 'everything looks good, this part is all approved, but based on this charge you need to submit a waiver'. I respond to this and let him know the maximum penalty for the charge was 12 months, and the court records and the legislation paperwork I'd submitted with my police report showed that. He made a show of flicking through the documents before saying he doesn't have those - I'd given them to the person three desks down from him 30 minutes ago, so they'd misplaced them behind the desk. I did not have an additional copy with me. 

He then asks me some more questions, I explain that there are two similar charges, the one I was charged with ONLY has 12 month max so I would qualify for the exemption and not have to submit the 601, to my understanding. I told him that I understood that though I had not been convicted, the proceeding was still considered guilty, but that the maximum sentence meets the exemption requirements. He asks me to sit down, says he will look into it further. I get called back and he says no, he has it in front of him and the max is 10 years. I ask him if he could confirm if he was looking at the charge with the particular wording - he declines to answer, continues to say he sees what I'm saying but his computer says 10 years. He then tells me that if I feel I have further information that I can submit it for administrative processing but otherwise, apply for the waiver, it will be approved and everything will be fine. 

 

The piece of paper he gave me, however, only has the section filled out to show I can apply for a waiver. He did state there was a QR code for AP on the same form, which there is, but he hasn't ticked it and obviously the tracker only shows my case has been denied and my ESTA has also been revoked. When I look at the QR code it asks for a whole heap of background information and a CV, and nothing about additional supporting evidence to support my application, so I don't even know if that's the correct thing I should be using. 

We've also spoken to a lawyer who has said in this situation to firstly obviously submit to AP because it's free and there's no harm trying, but that given the interpretation he's used and the fact of the situation being that he's using a crime I did not commit to base the denial on, that filing an appeal would be appropriate. I've done the reading that says you basically cannot appeal a denial, but she's said you can in some situations. 

So, I think I'm just looking for opinions: is all this a lost cause trying AP with my court records, a statutory declaration surrounding the events as well as a copy of the legislation relevant to outline the maximum penalty.  Am I still going to be stuck applying for a 601 waiver when I technically don't 'need' it given I was never at risk of a 10 year sentence?